Pro Diligo Lex

Internet based defamation cases have become a big thing in the last year. Here is a round-up of some of the interesting Australian defamation cases:

Justice Emmett recently delivered two software patent cases that serve as a very useful guide to the law on software patent cases in Australia.

Research Affiliates v Commissioner of Patents [2013] FCA 71 (Emmett J)

In this decision the sole question was whether the claimed invention was a “manner of manufacture”. Emmett J offered the following explanation for things can constitute a “manner of manufacture” (at [14]):

Matthews v SPI Electricity [2013] VSC 17

In this class action, the lead plaintiff has sought to limit the class of plaintiffs to only those members of an otherwise specified class who registered for the action. The Court has ordered the lead plaintiff to establish a web site, Facebook page and Twitter account for the class action, and to post notice of the registration to requirement to the new web site and social media accounts, and to the lawyer’s web site.

Cancer Voices Australia v Myriad Genetics [2013] FCA 65 (Nicholas J)

This was a challenge to the patent on the BCRA1 breast and ovarian cancer disposing gene (or specified mutant forms of it). The sole ground for challenge was that the claims in the patent were alleged not to be a “manner of manufacture” within the meaning of the Statute of Monopolies. The reference from the statute is as follows:

Google v ACCC [2013] HCA 1

Optiver and Tibra are 2 high frequency trading firms. Tibra was founded by former employees of Optiver. Optiver is suing Tibra for breaches of copyright in its software and breaches of confidence. This is a long running case, and they had a number of skirmishes in 2012. These skirmishes raised some issues about how courts should deal with complex technology cases, and how they should deal with discovery of encrypted documents.

Larkin v R [2012] WASCA 238

Larkin and another appellant (Shee) were convicted of conspiracy to cause unauthorised modification to data held in a computer, with sentences of 2½ and 3 years. Larkin procured Shee to write a trojan to give them undetected remote access to the Department of Health network. Larkin abandoned the idea just before the trojan was to be deployed, and there was no finding as to whether Shee continued with the plan

In William Close Pty Ltd v City of Salisbury [2012] SAERDC 26, the South Australian Environmental Development and Resources Court found that an email that had invalid headers was properly delivered.

The email in this case included a "Content-Transfer-Encoding" header that was empty. This is clearly contrary to the relevant standard (RFC 2045 s6), and the behaviour of mail software seeing an unrecognised value for "Content-Transfer-Encoding" has been specified (RFC 2049 s2, paragraph (3)):

A mail user agent that is MIME-conformant MUST:

...

In 2010 Optus was found to have engaged in misleading conduct, and in 2011 they were ordered to pay a fine of $5.26millon. The fine arose out of the widely cast "think bigger" campaigns for their broadband services. One of the more memorable advertisements involved a moose with extraordinarily large antlers. The advertisements were found misleading because they did not make it sufficiently clear the circumstances in which Internet access would be slowed down. In most cases the information was present, but not sufficiently prominent or clearly expressed.

On 3 April 2012, the Full Court of the Federal Court handed down its decision in ACCC v Google Inc [2012] FCAFC 49, finding that advertisements on Google were misleading when an advertiser bought a competitor's trade mark, and Google's advertising engine inserted that trade mark for the link in the ad. The Court also found that because Google provided the feature that enabled this, Google had itself engaged in misleading conduct.

This case strikes me as a phenomenal waste of time.